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The Color of Law – devastating history, incomplete policy

Richard Rothstein’s Color of Law is a devastating summary of the many ways that the US government created a society that was racially segregated by law, and as a consequence profoundly unequal in wealth. The account is powerful history, and needed for people to face segregation and inequality. But I’m not sure the focus on constitutional law is the best fulcrum for change.

The book shows in robust detail how segregated living patterns were shaped by government policies. Public housing in the first half of the 20th century was not only designed to be segregated, it imposed segregation on previously integrated places by replacing integrated neighborhoods with segregated housing projects for white and black people. Federal policies excluded middle-income African Americans from homeownership and wealth-building, through rules requiring segregation in federally-backed mortgages, racial exclusion in the GI bill, and racial covenants enforced by law. Policies deliberately sited highways to destroy African-American neighborhoods, and policies zoned to allow polluting industries and vice businesses in African-American neighborhoods. Policies drew school attendance boundaries to increase segregation and move white and black neighborhoods further from each other. Recently, in the housing bubble and bust in the 2000s, the predatory lending policies that lead to an epidemic of foreclosures and were targeted disproportionately at African-American buyers, and the resulting catastrophic loss of wealth disproportionately impacted African-American families. The litany is solidly researched and conclusive, and reaches into the present.

Rothstein was drawn to create this airtight case by the well-known and dubious logic used by Justice Kennedy ruling against a school integration plan in 1992, and cited by Chief Justice Roberts again ruling against school integration 2007, arguing that the residential racial segregation which drives school segregation is largely voluntary, driven by private choices, and therefore doesn’t require or allow government remedies. Thus Rothstein’s motivation to prove conclusively that segregation has in fact been created by government policy.

The book runs through a brief but scathing summary of leading high school textbooks that replicate the myths of voluntary segregation. Telling the history accurately, including in school education, is essential to changing people’s perspectives and opening people’s minds to the need for different policies.

The proof of dejure segregation is important for public consciousness, but the book’s focus on constitutional problems and federal remedies seems problematic as a primary lever for policy change. The wheels of constitutional law can grind powerfully, but exceedingly slowly most of the time. Cases need to be brought at a local level, and make their way through a decentralized appeals court system. The US Supreme Court chooses which cases it wants to take on, takes only about 1% of cases each year. It can take decades for an issue to surface as a Supreme Court ruling. In areas of school and residential segregation, rulings that don’t have public support can be ground down by ubiquitous workarounds.

While it is true that the segregated living patterns and wealth disparities were definitively created by government policy, there has been a pivot that the book acknowledges but underestimates. The book cites several cases where, governments, stymied by the illegality of segregating by race, turned to economic segregation via zoning. In one of the episodes in saga of failed attempts to build integrated housing near an automotive plant in Milpitas, “when officials discovered that the project would not be segregated, the town adopted a new zoning law increasing the minimum lot size from 6,000 to 8,000 square feet, making the project unfeasible for working-class buyers.”

In Chapter 4, the Color of Law shows how initiatives led by Secretary of Commerce Herbert Hoover in the 20s pioneered guidelines to separate single family from multi-family housing, with an underlying motivation of racial as well as economic segregation. During the Great Depression and WW2, home construction ground to a halt, but zoning rules blossomed in influence with the 50s post-war construction boom of single family, single-use zoned subdivisions.

Looking for levers to change policy today, it seems much more direct to focus on economic segregation enabled by zoning, which is currently legal; and to highlight the deep cognitive dissonance whereby people who decry economic inequality also support continued separation between apartments (or for that matter duplexes and triplexes) and detached houses. “Protect single family neighborhoods” is a common mantra and political conventional wisdom, among people who would have a hard time explaining what harms the single family neighborhoods are being protected from.

Another concern about the book’s policy orientation is that Rothstein seems to largely accept the premises of car-centric, single-use, home-ownership-focused suburbanism. Rothstein recounts sympathetically the motivations of middle class people seeking to escape crowded, urban conditions, with less corresponding questioning of the specific causes of tenement crowding.

Rothstein accepts the typology of inner city black slums and white suburban refuges in encouraging policies to help poor black families move into suburbs, even as the economic map has changed somewhat with the renewed popularity of walkable urban places. A telling quote is this: “meanwhile nearby schools in white neighborhoods had many empty seats as a growing number of white families left Richmond for the suburbs.” But Richmond, with a boom-and-bust population between 70,000 and 100,000, has never been a dominant city in the Bay Area, and is less dense than the supposedly “suburban” Milpitas to which it was being compared. Rothstein’s use of the terms “urban” and “suburban” seem like euphemisms for “town with many black people” and “town with many white people.”

The book does a brilliant job of showing the force of government-backed segregationism in creating white suburbs, but ignores the parallel forces of government-backed automotive and oil-industry policies in creating car-dominated, low-density, unwalkable places that fostered unhealthy, sedentary lifestyles, paved watersheds and natural habitat, polluted the atmosphere, and are the largest contributors to climate change. As Strong Towns highlights, suburban places accrue superficial and temporary benefits from cheap land, but impose high costs of car-ownership, and high per-resident infrastructure and environmental costs. To ensure convenient access by space-inefficient cars, policies mandate fully subsidized housing for private vehicles, while treating housing for people as optional. Attempting to fix segregation by helping lower-income African-Americans move to car-dominant suburbs has some benefits, but seems to perpetuate problems and create some new ones.

In a postscript, Rothstein briefly touches on the reverse problem of gentrification and displacement, as people with means return to walkable urban areas. Rothstein writes, “Gentrification would be a positive development if it were combined with inclusionary zoning policies to preserve affordable housing in every neighborhood.” But with its primary focus on the segregationist impulses behind suburbanization, the book doesn’t fully grapple with current trends, opportunities and challenges of re-urbanization.

Rothstein writes favorably about the importance of home ownership and home value appreciation for building family wealth, while noting the contradiction between considering the mortgage interest deduction as an entitlement while accepting long waiting lists for Section 8 housing vouchers. But the book does not address the tension between promoting home ownership, depending on home prices increasing, and a housing affordability crises, which is worsened by home prices continually increasing.

One small quibble in sourcing. The book does a good job of primary research, weaving in stories of African-Americans who worked hard, served their country, and still faced discrimination that has held families back for generations. The book would also have benefited from a few more of the voices of African-American advocates for civil rights in housing, who fought losing battles against segregation for many decades. Works by authors including Khalil Gibran Muhammad and Nikole Hannah-Jones do a better job of incorporating the voices of African-American leaders who proposed alternative policies, in addition to the important voices of people who suffered from discriminatory policies.

Overall, the Color of Law provides overwhelming evidence of the role played by policy in creating segregated living patterns and extreme wealth inequality, and should be required reading for anyone interested in US housing policy. However, for policy remedies to the tough problems, I don’t think the book is the last word.